By Dr. Michael J.K. Bokor

E-mail: mjbokor@yahoo.com

March 17, 2011

Many people have already expressed diverse opinions on the latest twists and turns in the search for (and punishment of) the murderers of the Ya-Na (Yakubu Andani II) and 40 of his subjects in March 2002. The matter is still troubling and the discourse on it must continue until reason and justice (not partisan politics) prevail.

The inability of our security services and the Judiciary to resolve the case satisfactorily is a sad reflection on the inadequacies of the country’s justice delivery system. It reinforces public fears that the justice delivery system is awash with incompetence. It also accentuates concerns at the harm that partisan politics is doing to the body politic, especially when issues become needlessly politicized to the extent as to threaten social cohesion and well-being.

As a nation, we must be saddened by the inability of our law enforcement agencies to solve this mystery surrounding the Yendi Massacre. It is disgraceful and absolutely mischievous on the part of anybody who celebrates this verdict by Justice E.K. Ayebi. His verdict in and of itself is based on technicalities that have the potential to perpetuate injustice and demoralize people. It is a recipe for disaster. But who is to blame a judge functioning within the ambit of the law, especially when technicalities become the bulwark of decision-making? Part of Justice Ayebi’s recourse to legal technicalities doomed this case: “It was not sufficient for the prosecution to say that the Ya-Na was dead and leave it at that. Even the investigation was not conclusive of the identity of the charred body, nor was a DNA examination conducted to prove that the body was that of the Ya-Na.”

“In law, the death of the Ya-Na must be proven beyond reasonable doubt, especially in the absence of a death certificate. If the prosecution failed to prove that the charred remains were the body of the Ya-Na, then the accused persons could not be held liable for the death of the Ya-Na,” the trial judge held.

Then, as Atta Akyea (the defendants’ lead counsel) rightly put it, there was an “embarrassing failure by one of the prosecution witnesses—Brigadier Wadorani, who was tasked to conduct the autopsy—to state in clear, unambiguous terms that the charred body was that of the Ya-Na. Instead, he told the court that the charred body was that of a male adult but could not state as a matter of fact whether it was that of the Ya-Na.

Senseless technicality at work. Is the Ya-Na still alive? Or are the 40 Andanis who lost their lives during the massacre still living among us? Why is nobody asking that whoever caused their death be looked for and dealt with? Why is nobody interested in seeking justice for the deceased and their relatives? In any case, since when have Ghanaians resorted to collecting death certificates to confirm death, anyway?

Another instance of senseless technicality: Atta Akyea derided the prosecution in this “juvenile” trial in which the state (intoxicated and driven by propaganda) will haul 15 Abudus before court and in a most shoddy manner seek justice for murder of a king, when the facts on the ground pointed to a war situation. He said it was fundamental that in a war situation, it would be difficult—if not impossible—to prove which bullet from an adversary hit the Ya-Na. He said the prosecution even failed to prove that the charred body for which the suspects had been hauled before court was that of the Ya-Na and did not bother to pursue a DNA analysis before proceeding to court.

Who said there was a war between the Abudus and the Andanis on that day when all that happened (just) before the Yendi Massacre had nothing to prompt the disturbances except that a group of the Abudus took up arms and invaded the Gbewaa Palace where the Ya-Na and his followers were at home doing nothing to suggest that they were preparing to wage (or were waging) any battle against the Abudus?

Is Atta Akyea saying that the Andanis sat at the Gbewaa Palace and invited the Abudu warriors there to fight with? Or that the Andanis agreed to turn the Gbewaa Palace into a battle-ground? Certainly, the Abudus were those who invaded the Gbewaa Palace and should be held liable for whatever happened. The law seems to favour those who know how to twist it. In its nature, form, and functions, the law is said to be an ASS; and those who know how to ride it will use it to do weird things for who-knows-what-purposes! I am not a lawyer nor have I ever claimed to know the intricacies of Ghana’s laws; but for one thing, I am aware of the harm that the law can be used to cause, especially if its technicalities are uplifted beyond plain commonsense and the realities of the circumstances surrounding cases that those inherent legal technicalities are pitted against. The shoddy work done by all those whose responsibility it was to unearth the cause of the massacre and to bring the perpetrators to book must be condemned to the full. The police and military detachment in the area failed. The BNI did its best but the bigwigs in the security apparatus beyond the BNI failed, which led to the resignation of Ellis Owusu-Fordjuor from the BNI in protest. The Ministry of Justice and Attorney-General’s Department under the Kufuor government failed. Those failures seemed to have been passed on to the NDC government, which not only politicized the matter but rushed to trial without doing adequate homework to gather cogent and incontrovertible evidence to nail the culprits. As if working under a spell, the state’s prosecutors fumbled with this serious matter to give the defendants enough elbow room to wriggle themselves out of the net of justice through mere technicalities. Shame!!!

The handling of this Yendi Massacre is a clear demonstration of how dangerous the legal technicalities are. I am sticking my neck out to say that Justice Ayebi’s verdict may satisfy the letter of the law but it harms the spirit of the law and leaves behind disturbing questions: • Did the Ya-Na and 40 of his subjects simultaneously die a natural death at the Gbewaa Palace in March 2002? If not, what or who caused their death? • Was there any disturbance in Yendi at the time during which the Abudus went on the rampage with dangerous weapons, which they fired indiscriminately in the Gbewaa Palace and its environs that caused death and destruction of property? Why were the Abudus in that area, where none of them lived, anyway? Why were they celebrating the aftermath of the day’s events?

• At the end of the disturbances (and even up to today), were the Ya-Na and the other victims still alive? If they were not, what or who caused them not to be (or killed them)? Were some elements of the Abudu faction not seen displaying body parts carried away from the Gbewaa Palace?

• Were any crimes committed at all? If yes, who were the culprits? We know the victims.

• If the NPP government under Kufuor was convinced of the commission of crimes during that invasion of the Gbewaa Palace by the Abudu faction and established an official commission of inquiry (the Wuaku Commission) as well as the Committee of Eminent Chiefs (under the chairmanship of the Asantehene), can it not be said that the objective was to expose the criminals and for them to be punished? Why couldn’t any culprit be processed for court under Kufuor? • Why should it be that those who were initially established to be prominently involved in the Yendi Massacre (at least, two of them, one of whom was a Jahinfo) and ordered to be arrested and detained by the Wuaku Commission were set free at the instigation of Nana Akufo-Addo, then Minister of Justice and Attorney-General?

• Why has it been difficult for the State to re-apprehend those culprits and prosecute them successfully as the law stipulates?

There may be many more disturbing questions than what I have posed here. Any sane Ghanaian will be depressed by this incompetence (or calculated attempt to deny justice to the aggrieved Andani family). Such a person will definitely be saddened by how the case has been handled so far. It is disgusting that no one in authority (under the NPP administration) wants to help in finding and punishing the murderers of the Ya-Na and his subjects. I say so because the circumstances surrounding the Yendi Massacre suggested many instances of complicity or abject connivance, which the Wuaku Commission’s report revealed in part.

Also disgusting is the incompetent manner in which the Ministry of Justice and Attorney-General’s Department under President Mills approached the trial. Why wasn’t enough homework done (as would have been the case had the matter been re-investigated and all those associated with it grilled for incontrovertible evidence before commencing the trial). The hiccups raised by the prosecution’s incompetence foretold the outcome of this trial. How incompetent can some people not be?

It is disturbing that our justice delivery mechanism is still seriously impaired by several factors that either inhere in the system itself or are injected into it by human foibles and frailties (for hidden political purposes). I have in mind the technicalities that are incompatible with human commonsense, behind which those entrusted with interpreting or enforcing the law hide to wreak havoc on the society with decisions whose impact is frightening. Seeking justice for the Ya-Na and 40 of his subjects who were brutally murdered in broad daylight shouldn’t be trivialized or politicized to the extent as to pit the NPP (under whose tenure the heinous and barbarous act was committed) against the NDC (which is seeking to make the law take its natural and logical course but boxing itself into a tight corner by unconscionably politicizing a purely criminal event). It is a pure case of being humane enough to feel empathy for victims of such situations and to work hard for justice to be done for them. Indications are clear that introducing partisan politics into this case is doing more harm than good. But for entrenched irreconcilable political differences, a pure crime such as the Yendi Massacre could have been professionally dealt with to set people’s minds at peace.

Unfortunately, however, the matter has been twisted to assume a huge but needless political dimension, which threatens to becloud the reality—the obvious imperative need for the cause of justice to be served. As matters stand now, the NDC is suffering a negative backlash from many angles—from the aggrieved Andani family; from the NDC’s own functionaries who are unhappy at the turn of events and blaming the government for it; from the Abudu family; and from many others who see the trial as a challenge to our justice delivery system.

The Andani family has a genuine cause to complain about the verdict, having all along had their morale boosted by persistent assurances from government functionaries and with reference to the NDC’s own manifesto (to set up a Presidential Commission whose investigation would settle the case to appease them). Regarding the court’s verdict as a big blow, the Andanis are implacably embittered and haven’t made any secret of the political consequences for the NDC government. Whether their threat will undo the government or not is in the womb of time.

The Abudus received Justice Ayebi’s ruling with mixed feelings—tears of joy. They shed tears because they felt they were being hounded to achieve political ends; and they celebrated the court’s verdict as a confirmation of their innocence. But the political element still remains because the Abudus have all along displayed pro-NPP dispositions and might feel disliked by the NDC. Thus, the verdict has freed them from any official encumbrance.

Let it be said loud and clear that this particular case is a big blot on our justice delivery system. No one should condone this kind of laxity because doing so will create the impression that anybody can do anything at all and get away unscathed with the support of those wielding the political (or judicial) clout in the system.

More pointedly, now that the case has reached this point, it will be difficult for any higher court to overturn Justice Ayebi’s verdict without either further distorting the line or inciting the Abudus and their political backers to cause mayhem. Under other legal considerations, won’t any reversal be seen as a manipulation of the system to satisfy the Andanis? Or that the Abudus are being unnecessarily hounded? Or that any re-opening of the trial will make the case itself illegal? How many times must the accused be tried in one case? Haven’t these Abudus already suffered enough pain, being taken through all this prosecutorial labyrinth?

No matter what happens hereafter, public opinion indicates that our justice delivery system is fraught with impediments that negate any genuine effort to fight the cause of justice. But the search for justice for the Ya-Na and the other victims must not end here. If it does, it will go down in history as an act of collective wickedness on our part. We have a lot more to benefit from punishing the culprits than letting them off the hook. Let’s go after them to prove that we are interested in being humane to our fellow human beings.